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the second floor and it fell onto someone walking underneath or onto a car and damaged a car down below, then that restaurant or whoever signs the agreement would have to defend and indemnify the City from any claims resulting from that. She added that this is exactly the same as what the City requires for outdoor dining permits on the ground floor. Commissioner Balch inquired if the City can revoke this permit on the second floor. Ms. Harryman replied that the City could certainly do it for the first floor, but it has not had this for the second floor as this is the first time this is being done. She indicated that staff would look at this as it would any other Code Enforcement issue. She noted that it would be a little harder to tell someone that he has to tear something down or that he cannot use it, but Code Enforcement does do that from time to time. Commissioner O'Connor inquired if the City would restrict the use by making the business owner pull tables back away from the railing. Ms. Harryman replied that this is the point she was trying to make, that there are things the City could do if there were problems, such as putting up some sort of glass exterior behind the railing, although it is not going to prevent anyone from tossing things over the balcony. She explained that the main thing staff looks to are conditions that protect the Americans with Disabilities (ADA) Act such as egress, as well as not leaving litter or something slippery that would cause a hazard to pedestrians. She noted that again, this refers to the lower ground because the City has never had to address a second floor, but staff could certainly include issues of concern in that agreement. Commissioner Nagler noted that Condition No. 17 states: "No outdoor dining is part of this approval. Prior to installation of any outdoor seating or tables, the applicants and /or tenant shall submit an outdoor dining permit for review and approval. Plans showing the location and design of the outside dining furniture shall be included with the outdoor dining application." He stated that this obviously refers to the ground floor, but the condition is not floor- specific, and should the Commission approve the project, it would assume that the condition applies to both stories. Mr. Weinstein replied that the condition would apply to both stories. Commissioner Nagler stated that in the earlier conversation, staff has been referring to an outdoor dining permit applying to the ground floor when in fact the condition does not specify the floor. Commissioner Balch stated that he foresees the ground floor possibly now as a walking path because the bollards are moveable; and there are people dining over a walkway. He noted that if there were a problem on the ground floor, the City has some significant teeth to make sure it is in the public's interest, and asked if the City has similar teeth for the second -floor usage. He pointed out that hopefully it never happens, but the second PLANNING COMMISSION MINUTES, May 13, 2015 Page 12 of 32